Now that I’ve read the full majority opinion and concurrences, I have a few comments and predictions to make regarding NYSRPA v Bruen (I’ve omitted citations, so please just go to the actual opinion and use CTRL-F if you need to find something). I ignored the dissent completely; Alito’s concurrence did such a great job poking fun at it for being full of typical gun control talking points completely irrelevant to the case, I feel safe in doing so. Before I could even finish reviewing the case, SCOTUS issued its other blockbuster opinion for the term, Dobbs v Jackson, aborting Roe. Let’s all be grateful that a strong majority of SCOTUS justices is standing up for Life and its necessary corollary, Self-Defense. Remember to thank also the nation and people of Ukraine, the thousand year old culture that gave us our western concept of an independent judiciary. Separation of executive and legislative functions traces back to ancient times, nothing new. Montesquieu famously wrote about something different: tripartite separation of powers. Yet decades before Montesquieu the Cossack hetman of Zaporizhzhia, Pylyp Orlyk, included an independent judiciary in his 1710 constitution. (Same Zaporizhzhia where Putin shelled Europe’s largest nuclear power plant.) So thank the Cossacks, and thank the brave Ukrainians of today, 59% of whom support the right to bear arms in public, according to a recent government poll in Ukraine.
There are two things that really stand out to me in Clarence Thomas’ majority opinion. First, the standard of review is extremely strong, stricter than strict, much better than any of the experts seemed to have predicted; yet simple. Second, the opinion includes a surfeit of opinion and historical data favoring open carry which, while mostly dicta in this case, will serve to keep our Second Amendment on track so it doesn’t get derailed by concealed carry. [I support concealed, teach concealed, carry concealed; even when I open carry, I carry a concealed backup in case high-level holster retention is defeated. While at times tactically inferior, open carry is indeed the superior right. More on this below, but for now let it suffice to say that if you love concealed carry, you should want open carry to have the maximum protection. Otherwise, you will have neither because concealed carry alone can be eliminated, regulated away as a shrinking ghetto. With real open carry available, legislatures will do everything possible to make concealed carry available. This actually happened a few years ago in Ohio when that supreme court ruled in favor of open carry; suddenly, the state passed shall-issue for concealed.]
Further down at the end of this article, I speculate on what will happen to existing gun regulations going forward. It may not happen overnight, but we are already seeing it start and it’s going to be a bloodbath. Virtually the entire scheme of gun control is based on a lie. The vast majority of these laws are not meant to control anything but gun owners, and they will go the way of the slave codes. The only tradition gun control has on its side is the tradition of racism it shares with the slave codes, where it started.
At issue in the case was whether New York’s “proper cause” requirement (requiring some special, unusual self-defense need) for issuance of a license to carry a firearm in public violates the Second and Fourteenth Amendments. The vast majority of states, 43 in total, are known as “shall-issue” states because they easily issue licenses to carry in public upon objective criteria. Many of these same states have joined a new trend of allowing “constitutional carry” which eliminates the requirement to obtain a license, although a license may still be offered allowing additional privileges. New York is one of a handful of jurisdictions, along with California, DC, Hawaii, Maryland, Massachussetts, New Jersey, known as “may-issue states”, which all require something like New York’s proper cause. [Err, required. As I write this, California and New Jersey have already announced they will no longer enforce their respective “good cause” and “justifiable need” requirements; however, see below re CA’s good moral character requirement.]
Holding
New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.
Standard of Review
The biggest surprise of this opinion is how simple and strict the review standard is, as clarified by Clarence. One could say the opinion is articulate and bright and clean…I mean, that’s a storybook, man! One could, but I’ll leave the flattery to Biden and focus on the simple strength of this liferope handed to our Republic in the nick of time by Justice Thomas. I will point out the perfect poetic justice in Thomas, previously the victim of “high-tech lynching” at the hands of Biden, administering a simple, old school, low-tech legal lynching of the Biden Left, now swinging from a tree somewhere in CHAZ, no longer able to terrorize the public, or Kavanaugh.
Most of the legal scholars opining on this case seemed to be expecting the Court to adopt either a “strict scrutiny” standard where the government must show the regulation is “narrowly tailored to achieve a compelling governmental interest” or at least “intermediate scrutiny” where the government must show the regulation is “substantially related to the achievement of an important governmental interest.” The gun community was obviously hoping “strict scrutiny” would be adopted. But the Court rejected both of these “means-end scrutiny” standards, “because the very enumeration of the right takes out of the hands of the government — even the Third Branch of Government — the power to decide on a case by case basis whether the right is really worth insisting upon.” In other words, when it comes to a fundamental right like the Second Amendment, the ends do not justify the means. From Heller: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Heller did not actually use any means-end scrutiny, and specifically rejected intermediate scrutiny. Which begs the question, why was nearly everyone expecting such a standard to be adopted? Well, Heller was a little fuzzy in noting that the ban “would fail constitutional muster under any of the standards of scrutiny that we
have applied to enumerated constitutional rights” and using that inch of wiggle room the circuit courts went a mile ahead and imposed their own means-end scrutiny standards. Clarence thus clarifies:
If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.
The technical legal term for this is “smack down” — SCOTUS put an end to “circus” confusion with the following standard of review, using Heller’s textual/historical approach:
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
Step One – Textual Analysis
When does the Second Amendment’s plain text cover an individual’s conduct? The Court’s textual analysis focuses on the normal and ordinary meaning of the Second Amendment language, and thus determines “the operative clause — “the right of the people to keep and bear Arms shall not be infringed” — “guarantee[s] the individual right to possess and carry weapons in case of confrontation” that does not depend on service in the militia.
Further discussing its holding in Heller, the court notes:
After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” …. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” …. For example, we found it “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” that the Second Amendment protects the possession and use of weapons that are “‘in common use at the time.’”
….
We have already recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” … “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” … Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.
Repeat, the Court affirms that the Second Amendment only protects the possession and use of weapons that are in common use at the time. Very important to keep this in mind before running off to the howitzer shop, although the Court does note it is not undertaking an exhaustive analysis of the scope of Second Amendment protection. There is some hope as Thomas’ opinion actually uses the phrase “gun culture” twice, which is cool, except that it refers to English gun culture, which has pretty much disappeared. Anyway, it would seem expanding gun culture and gun usage holds the possibility of expanding the scope of the right constitutionally (as well as politically).
Applying textual analysis to the case at bar, the Court states:
It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. … Nor does any party dispute that handguns are weapons “in common use” today for self-defense. … We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does. Respondents do not dispute this. … Nor could they. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller, the “textual elements” of the Second Amendment’s operative clause— “the right of the people to keep and bear Arms, shall not be infringed”—“guarantee the individual right to possess and carry weapons in case of confrontation.” … Heller further confirmed that the right to “bear arms” refers to the right to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” … This definition of “bear” naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. [Am I the only one who does this??] Although individuals often “keep” firearms in their home, at the ready for self-defense, most do not “bear” (i.e., carry) them in the home beyond moments of actual confrontation. To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative protections. Moreover, confining the right to “bear” arms to the home would make little sense given that self-defense is “the central component of the [Second Amendment] right itself.” … After all, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” …, and confrontation can surely take place outside the home. Although we remarked in Heller that the need for armed self-defense is perhaps “most acute” in the home, …, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. … (“[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower”). The text of the Second Amendment reflects that reality. The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear” arms in public for self-defense.
Step Two – Historical Analysis
Next the Court assesses whether its initial conclusion was “confirmed by the historical background of the Second Amendment”:
The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.
Second Amendment jurisprudence is guided by history, not mired in it. Just as technologically advanced modern arms can be protected, so can modern regs be allowed if they are “relevantly similar” enough to be analogous:
While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense. As we stated in Heller and repeated in McDonald, “individual self-defense is ‘the central component’ of the Second Amendment right.” … (“the inherent right of self-defense has been central to the Second Amendment right”). Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are “‘central’” considerations when engaging in an analogical inquiry.
The Court cautions:
To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” … On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
As an example, the Court offers this helpful dicta on so-called “sensitive places” (will discuss this more below), anticipating future constitutional chafe from litigation in these areas:
Consider, for example, Heller’s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” … Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. … We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible. Although we have no occasion to comprehensively define “sensitive places” in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law. In their view, “sensitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.” … It is true that people sometimes congregate in “sensitive places,” and it is likewise true that law enforcement professionals are usually presumptively available in those locations [really??]. But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. … Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Like Heller, we “do not undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” … And we acknowledge that “applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins.” … “But that is hardly unique to the Second Amendment. It is an essential component of judicial decisionmaking under our enduring Constitution.” … We see no reason why judges frequently tasked with answering these kinds of historical, analogical questions cannot do the same for Second Amendment claims.
Applying historical analysis to the case at bar, the Court finds:
the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.
….
when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” … The Second Amendment was adopted in 1791; the Fourteenth in 1868.
….
we recognize that “where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” But to the extent later history contradicts what the text says, the text controls. Thus, “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.”
….
As we recognized in Heller itself, because post-Civil War discussions of the right to keep and bear arms “took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.” …
(“The belated innovations of the mid- to late-19th-century courts come too late to provide insight into the meaning of [the Constitution in 1787]”). And we made clear in Gamble that Heller’s interest in mid- to late-19th-century commentary was secondary. Heller considered this evidence “only after surveying what it regarded as a wealth of authority for its reading—including the text of the Second Amendment and state constitutions.” … In other words, this 19th-century evidence was “treated as mere confirmation of what the Court thought had already been established.”….
A final word on historical method: Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. … (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.
….
scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791. … We also acknowledge that there is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government). … (“When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings”). We need not address this issue today because, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry.
….
With these principles in mind, we turn to respondents’ historical evidence. Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Under Heller’s text-and-history standard, the proper-cause requirement is therefore unconstitutional.
The Court then analyzes statutory and case law beginning with England’s 1328 Statute of Northampton, and then laws in England and America going forward hundreds of years through the 19th century, and found that except for a few outliers and some bans on concealed carry in the 19th century, during the most relevant period of time these laws only regulated carry in a way that spread fear or terror among the people, or the carrying of dangerous and unusual weapons not in common use. While further back in time, the English experienced civil strife and repeated disarmament efforts, by the 1620’s when Englishmen founded the American colonies, most restrictions on public carry of firearms had been eliminated, and throughout the 18th century there was a vibrant gun culture in England, removing the fear that may have attended display of firearms in earlier times of discord and disarmament. In no significant way did American laws restrict peaceable citizens from publicly bearing ordinary arms for ordinary self-defense. There were surety laws that could force a violent person to post bond in order to carry, if they were shown to be likely to breach the peace and could not prove a special need for self-defense, but those laws were rarely enforced and the very existence of those laws is persuasive evidence that even persons likely to be violent had the right to bear arms, so long as they paid for the bond. Restrictions on open carry were extremely rare. Restrictions on concealed carry appeared with some frequency in the 19th century, were less rare, and were generally deemed constitutional because they allowed for unrestricted open carry (more on open carry below). The harsher restrictions tended to be in territorial governments and are irrelevant because they were temporary, rarely given judicial review, and they affected less than one percent of the US population.
Thomas’ majority opinion leaves open to scholarly debate whether regulation after 1791 is at all relevant for historical analysis of the Second Amendment, and proceeds with analysis of 19th century regulation. Here is how he summarized the antebellum period:
To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly. [more on this below] None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.
….
Writing for the Court in Dred Scott v. Sandford, …, Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” … Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.
In the late 19th century there were a couple of Texas cases that upheld a ban on concealed carry as constitutional due to exemption of open carry from the ban, even though the law also required that the carrier have reasonable grounds to fear an unlawful attack. The Court recognized these Texas cases as analogous to New York’s position on requiring “proper cause” but viewed these cases as outliers, along with a similar West Virginia statute banning carry of all handguns.
The Court did not consider regulations post-1900.
The Court concludes:
At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. … Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public.
….
The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” … We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.
Open Carry
Atty Dave Duringer, handing out leaflets on open carry.
While the standard of review clarencification is great and exceeded all expectations, we should also rejoice in how the Court treated open carry, not merely because it is more solid legally with the old case law favoring it; but because it still is, as much as ever, the best way for us to carry as a republic. There is an old post from years ago going into some detail on my reasons for supporting open carry over concealed carry, but I will summarize:
- Education
–“Open Carry is Ultrasound for the Second Amendment” (phrase i coined to describe this)
–encourage militia ethic, proper handling, competence, etc
–more safety in numbers if carrying openly - Deterrence
–see bumblebee in sidebar? logo for my free concealed carry training (yes, i teach that too); we need to be aposematic citizens, like the bumble bee
–protects your neighbors as well
–if carrying concealed, might you be hit in the back of the head? CCW didn’t protect you
–if carrying openly, attacker will pick a different victim, maybe a different neighborhood - Accountability
–concealed carry ghetto-izes gun owners, separates us from community
–is your neighbor carrying as often as she should? it’s a duty, at least a moral one
–is your neighbor carrying properly and safely? around kids? around strange people?
–neighbors helping train each other; armed society, polite society - Prevent Gun Free Zones
–concealed carry causes Gun Free Zones; fear results in passing laws to “do something” like GFZ; people afraid of being helpless against unknown gunman; which is exactly what GFZ creates
–with open carry you have armed people to respond; you can see who is armed (legally) and size them up; problems can be monitored; cops can see who may respond to an attacker, even before an attack happens; which won’t be very likely, attacker will pick another venue - More Comfortable
–especially if hot–no need for coat, vest, or undershirt under Hawaiian shirt, etc.
–no need to worry about “printing” or “brandishing” etc.
–no need for uncomfortable in-waist-band (IWB) holster, can wear outside holster; OWB holsters more likely to have high-retention options (buttons, levers, etc.); you can always carry pepper spray or a small pocket pistol or revolver as backup, in case retention defeated - Response Quicker
–no garment to clear on draw; garment may also cause malfunction - Concealed Might Not Be Concealed
–after carrying a long time, you kind of know when others are carrying
–as more carry concealed, this will be more of a factor
As noted above, our Second Amendment guarantees an American tradition that favors open carry over concealed carry when it comes to regulation. Concealed carry may be banned, but open carry cannot be banned. NOT the other way around, as some would have it. The Court is actually quoted above as saying this: “States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.”
The Court further summarizes:
Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” … Respondents unsurprisingly cite these statutes—and decisions upholding them—as evidence that States were historically free to ban public carry. In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. … It was also true in Louisiana. … Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. … The Georgia Supreme Court’s decision … is particularly instructive. Georgia’s 1837 statute broadly prohibited “wearing” or “carrying” pistols “as arms of offence or defence,” without distinguishing between concealed and open carry. … To the extent the 1837 Act prohibited “carrying certain weapons secretly,” the court explained, it was “valid.” … But to the extent the Act also prohibited “bearing arms openly,” the court went on, it was “in conflict with the Constitutio[n] and void.” … The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry. Finally, we agree that Tennessee’s prohibition on carrying “publicly or privately” any “belt or pocket pisto[l],” 1821
Tenn. Acts … was, on its face, uniquely severe, … That said, when the Tennessee Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn. Acts …, the court read this language to permit the public carry of larger, military-style pistols because any categorical prohibition on their carry would “violat[e] the constitutional right to keep arms.” … All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues.
Footnotes with statutes prohibiting concealed carry:
16 Beginning in 1813 with Kentucky, six States (five of which were in the South) enacted laws prohibiting the concealed carry of pistols by 1846. See 1813 Ky. Acts §1, p. 100; 1813 La. Acts p. 172; 1820 Ind. Acts p. 39; Ark. Rev. Stat. §13, p. 280 (1838); 1838 Va. Acts ch. 101, §1, p. 76; 1839 Ala. Acts no. 77, §1. During this period, Georgia enacted a law that appeared to prohibit both concealed and open carry, see 1837 Ga. Acts §§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibition could not extend to open carry consistent with the Second Amendment. See infra, at 45–46. Between 1846 and 1859, only one other State, Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, meanwhile, enacted in 1821 a broader law that prohibited carrying, among other things, “belt or pocket pistols, either public or private,” except while traveling. 1821 Tenn. Acts ch. 13, §1, p. 15. And the Territory of Florida prohibited concealed carry during this same timeframe. See 1835 Terr. of Fla. Laws p. 423.
22 The Territory of New Mexico made it a crime in 1860 to carry “any class of pistols whatever” “concealed or otherwise.” 1860 Terr. of N. M. Laws §§1–2, p. 94. This extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court. Its value in discerning the original meaning of the Second Amendment is insubstantial. Moreover, like many other stringent carry restrictions that were localized in the Western Territories, New Mexico’s prohibition ended when the Territory entered the Union as a State in 1911 and guaranteed in its State Constitution that “[t]he people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons.” N. M. Const., Art. II, §6 (1911); see infra, at 61.
31 In 1875, Arkansas prohibited the public carry of all pistols. See 1875 Ark. Acts p. 156, §1. But this categorical prohibition was also short lived. About six years later, Arkansas exempted “pistols as are used in the army or navy of the United States,” so long as they were carried “uncovered, and in [the] hand.” 1881 Ark. Acts p. 191, no. 96, §§1, 2.
32 In 1879, Salina, Kansas, prohibited the carry of pistols but broadly exempted “cases when any person carrying [a pistol] is engaged in the pursuit of any lawful business, calling or employment” and the circumstances were “such as to justify a prudent man in carrying such weapon, for the defense of his person, property or family.” Salina, Kan., Rev. Ordinance No. 268, §2.
Footnotes with cases upholding restrictions on concealed carry:
17 See State v. Mitchell, 3 Blackf. 229 (Ind. 1833); State v. Reid, 1 Ala. 612, 616 (1840); State v. Buzzard, 4 Ark. 18 (1842); Nunn v. State, 1 Ga. 243 (1846); State v. Chandler, 5 La. 489 (1850); State v. Smith, 11 La. 633 (1856); State v. Jumel, 13 La. 399 (1858). But see Bliss v. Commonwealth, 12 Ky. 90 (1822). See generally 2 J. Kent, Commentaries on American Law *340, n. b.
18 See Reid, 1 Ala., at 619 (holding that “the Legislature cannot inhibit the citizen from bearing arms openly”); id., at 621 (noting that there was no evidence “tending to show that the defendant could not have defended himself as successfully, by carrying the pistol openly, as by secreting it about his person”).
19 See, e.g., Chandler, 5 La., at 490 (Louisiana concealed-carry prohibition “interfered with no man’s right to carry arms (to use its words) ‘in full open view,’ which places men upon an equality”); Smith, 11 La., at 633 (The “arms” described in the Second Amendment “are such as are borne by a people in war, or at least carried openly”); Jumel, 13 La., at 399–400 (“The statute in question does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a particular mode of bearing arms which is found dangerous to the peace of society”).
20 With respect to Indiana’s concealed-carry prohibition, the Indiana Supreme Court’s reasons for upholding it are unknown because the court issued a one-sentence per curiam order holding the law “not unconstitutional.” Mitchell, 3 Blackf., at 229. Similarly, the Arkansas Supreme Court upheld Arkansas’ prohibition, but without reaching a majority rationale. See Buzzard, 4 Ark. 18. The Arkansas Supreme Court would later adopt Tennessee’s approach, which tolerated the prohibition of all public carry of handguns except for military-style revolvers. See, e.g., Fife v. State, 31 Ark. 455 (1876)
21 Shortly after Andrews, 50 Tenn. 165, Tennessee codified an exception to the State’s handgun ban for “an[y] army pistol, or such as are commonly carried and used in the United States Army” so long as they were carried “openly in [one’s] hands.” 1871 Tenn. Pub. Acts ch. 90, §1; see also State v. Wilburn, 66 Tenn. 57, 61–63 (1872); Porter v. State, 66 Tenn. 106, 107–108 (1874).
30 Many other state courts during this period continued the antebellum tradition of upholding concealed carry regimes that seemingly provided for open carry. See, e.g., State v. Speller, 86 N. C. 697 (1882); Chatteaux v. State, 52 Ala. 388 (1875); Eslava v. State, 49 Ala. 355 (1873); State v. Shelby, 90 Mo. 302, 2 S. W. 468 (1886); Carroll v. State, 28 Ark. 99 (1872); cf. Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) (remarking in dicta that “the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons”).
Other Issues
So many gun control laws are now subject to attack based on this opinion. It’s open season, and yes even though I mainly do estate planning, I have done litigation in the past and may now consider taking Second Amendment cases. We are at the beginning of a new age of Second Amendment jurisprudence, and it’s exciting.
Ammunition restrictions, the handgun roster, magazine capacity limits, storage requirements: hard to see these surviving under the new standard of review, as all of these directly impinge and infringe upon self-defense with commonly used weapons.
Assault Weapons (so-called): some regulation will be allowed, but no more than other rifles, and certainly no ban will be survive; these are actually very common weapons, even in California, and extremely appropriate for self-defense. Ask Kyle Rittenhouse.
California CCW: I am hopeful that Charles Nichols’ lawsuit will result in invalidation of California’s open carry prohibition. Once that happens, California legislators will do everything they can to make CCW easy, because they do not want to see people carrying openly. This is exactly what happened in Ohio years ago. But right now we still have a problem with California’s CCW law. Even though the AG published a memo discarding the good cause requirement, it appears from that memo they will try to use the good moral character requirement to frustrate issuance and at least make the process more difficult. [See my rebuttal to Bonta’s memo here.] This will not fly — one way or another, the latter requirement will be stricken as it does not “contain only ‘narrow, objective, and definite standards’ guiding licensing officials, …, rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion'” and based on how enthusiastically the AG urges issuing agencies to use the good moral character requirement, it seems the AG has not thoroughly reviewed Thomas’ opinion:
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” … Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. … Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” … And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, …, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” …—features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
Sensitive Places, Including Gun Free School Zones: most of these will be stricken as not analogous to historical regulation; not just statutory, but also conditions imposed by issuing agency; most egregious is the Gun Free School Zone with its 1000 foot reach, far too excessive and without historical analogy; they might shoehorn schools by analogy, though that is where we need guns the most.
National Firearms Act (NFA) items:
- I believe controls on suppressors (aka silencers) will be invalidated as these items are not the danger they are portrayed to be in movies (usually they are not actually silent and still emit a fair amount of noise), and they can help avoid hearing loss among shooters during training and perhaps also be of use in self-defense as they can actually improve accuracy.
- short-barreled rifles and shotguns (SBR/SBS): Are they in common use in our time? Probably not protected.
- machine guns: with training these can be used for self-defense, in short two- or three-round bursts, but these are not in common use anywhere in our time, so no, these are not at all likely to be protected.
- AOWs: used to be somewhat popular but that was before bullpups, also roster (which will be stricken); doubt they will be protected and I never really understood the attraction to these. Might get a bullpup, though.
